Making America Great Again in Space

The Trump Administration, in a matter of a few days, is setting in motion major policies and plans promised during the presidential campaign. “Make America Great Again” and “America First” are being transformed from political slogans to economic, national security, and foreign policy actions.

The United States won the Cold War space race by conquering the Moon, an accomplishment that was emblematic of America’s greatness as leader of the Free World and its pride of place in science and technology. As grand as this accomplishment was, what President Trump might envision is not only a return to the lunar surface, but also a grand reinvigoration of the engines of American greatness to achieve vaster things that might have remained out of reach.

What better way to demonstrate the fundamental vision and commitment of the new administration than to encourage the new American pioneers, who seek not only to settle on the Moon, but to realize their dreams and ambitions beyond cis-lunar space to Mars, and beyond that, not only to explore, but also to exploit the limitless economic potential of countless celestial bodies?

A lot has been said lately about the need to maintain the present direction of the U.S. space program, and something has been done about it, as Congress has sought to enact legislation for the period of transition for NASA in the new administration. The idea is that a stability of expectations at the program level is a good thing. As far as it goes, this obviously makes sense. But it does not go far enough, and it is up to the Trump Administration to take it farther — to make America great again and to ensure that America is first.

The 2015 U.S. Commercial Space Launch Competitiveness Act is a good start to addressing the rights of U.S. companies to own resources extracted from celestial bodies, by declaring certain principles and rules and setting in motion a process leading to a fully-fledged regime upon which the requisite, massive private investments can be made. Remaining necessary are: (a) a continuing, strong, commitment of the U.S. government to extend human and robotic presence in space beyond low earth orbit; (b) early establishment of the investment-friendly space resource utilization regime in U.S. law and policy; (c) agreements with other spacefaring nations consistent with that law and with applicable multilateral agreements and customary international law; (d) sufficient funding for authorization and continuing supervision of activities as required by international law; (d) enhanced encouragement of public-private partnerships (PPP); and (e) private sector planning and investment for the prospecting, exploration, and economic exploitation to come. As much as excessive regulation, investment uncertainty is an enemy of the qualities that have been most successfully demonstrated by the American people — ingenuity, innovation, courage, determination, and just plain hard work.

Widely varying proposals have been made for the analysis of the legal and policy issues presented by the creation of a property rights regime. No fewer ideas, reflecting profoundly differing ideologies, have been floated for the nature of that regime. Many have failed to withstand reasoned analysis based on applicable rules and principles of law and the lessons of sound economic policies.

In November 2016, the government of Luxembourg also passed legislation recognizing the rights of its citizens to own what they extract from resource deposits on celestial bodies. The government of the United Arab Emirates has expressed interest in developing its own national regime. Other countries have moved in that direction, as well, and some have intervened in the United Nations to assert themselves in the property rights arena.

Not only American, but also Russian, Chinese, Indian, European, and other companies have the wherewithal to make investments for the utilization of resources on celestial bodies, and in view of the scale of the requisite financial commitments, it is to be expected that international, commercial consortia will be formed. Moreover, the technologies for extraction are well understood.

Conflict avoidance and resolution will be essential to investment. With national governments moving forward on legislation, it will be critically important to ensure that an agreed set of international rules will govern how resource development takes place. President Trump’s announced determination to pursue bilateral agreements in trade strongly suggests that his administration would readily recognize the wisdom of applying that approach to international rules to deal with potential or actual conflicts among claimants for the resource of celestial bodies. Reciprocal recognition of claims based on compatible national regimes of likeminded spacefaring nations would achieve what would be necessary for investors, and would do so far more rapidly and effectively than would multilateral alternatives, most notably the global one.

How the Trump Administration conducts its analysis leading to the new regime will have a great deal to do with what the rules will look like, and more to the point, whether they will contribute to making America great again and ensuring that America is first in the space arena. While those engaged in the process will find those many, varied proposals and ideas earlier referred to, administration officials will also find a remarkable degree of consensus on key points, which will not only inform, but also strengthen the future regime.

About the Author

Dr. Athina Balta is the Principal Member of Athina Balta Law Group PLLC and an adjunct professor at George Washington University Law School teaching trial advocacy. Her PhD dissertation provides an in-depth analysis and evaluation of different policy choices as well as recommendations for the creation of comprehensive and sustainable property rights regime on the U.S. domestic and international levels.